NBC News got scooped Friday by the Washington Post on perhaps the biggest political story of the year in part because of the exigencies of corporate risk management; specifically, legal concerns over disseminating audio of Donald Trump talking lewdly and, he likely thought, privately on a hot mic.
But was NBC correct to worry about legal liability for publishing audio of Access Hollywood's then-host Billy Bush engaging in a misogynistic and predatory conversation (what Trump has downplayed as "locker room" banter) with the now-GOP nominee for president? And will other legal anxieties prevent MGM, owner of the video and audio archives of Trump's The Apprentice, from releasing those tapes?
The Access Hollywood issue concerns the eavesdropping statute and whether Trump was aware, or should have been aware, that what he was saying to Bush inside a bus and off-camera was being recorded. California is a "two-party consent" state, meaning both sides of a conversation must agree to it being recorded or one side can bring a claim, whether or not it is made public, as it was in this case. A top legal executive at a non-NBC network news division says the two-party consent rule often comes up when network lawyers review sensitive stories before they air. Indeed, NBC sources tell The Hollywood Reporter when lawyers for the network learned of the tape shortly after NBC News chief Andy Lack did on Monday, they were focused on whether NBC-owned Access Hollywood could face liability for releasing the audio.
Of course, Trump is a public figure, and he was wearing a microphone and seated in an Access Hollywood-branded bus preparing to do an on-camera interview with Bush to promote his appearance on a soap opera, so a strong argument could be made that Trump either knew or should have known he was being taped during the lewd conversation. For that reason, NBC's legal department decided that it was legally sound to air the tape, a source tells THR. Access Hollywood began preparing a segment and so did NBC News, the latter agreeing to let Access go first since one of its producers first unearthed the 11-year-old video. But neither piece had aired by Friday morning when the Washington Post received leaked audio from inside NBC, the newspaper has said, and was able to quickly verify and publish it on its website by early afternoon. The Post did not face the same potential legal jeopardy because it didn't make the recording, NBC's Access Hollywood did.
Once the Post made the tape public, NBC quickly disseminated it via an MSNBC segment anchored by Trump campaign correspondent Katy Tur and on its website. Whether Trump and his attorneys will challenge the legality of NBC having made the recording in the first place remains to be seen.
But what the timeline also makes obvious is that NBC News was aware of Bush's part in the episode for nearly a week before the tape became public. Bush is now a co-host of the 9 a.m. hour of the Today show, NBC News' most lucrative franchise and one that counts on a heavy female viewership. "They appreciated that it would have consequences for Billy," says an NBC source. Bush has apologized for his role in the tape, but his Facebook page has been inundated by negative comments.
In the wake of the Access Hollywood disclosures, other news and entertainment programs are said to be combing through archives for Trump audio and video outtakes that might now be relevant. And pressure is growing on owners of The Apprentice, the reality show that made Trump a national star, to release video or audio outtakes. Bill Pruitt, a producer on the first few seasons of the show, tweeted Saturday about the Access Hollywood tapes: "I assure you: when it comes to the #trumptapes there are far worse. #justthebeginning." Reached on Saturday, Pruitt declined to elaborate.
As a producer on seasons 1 & 2 of #theapprentice I assure you: when it comes to the #trumptapes there are far worse. #justthebegininng
- Bill Pruitt (@billpruitt) October 8, 2016
Geraldo Rivera also revealed Sunday that he may have more tapes in which Trump is making "embarrassing" comments, but hasn't yet decided whether he will release them. "I have interviewed Donald Trump many times and been with him many times and I have tapes," Rivera said on Fox News. "My brother and I have been starting to go through the tapes now and there are statements that, in the context of the current climate, would be embarrassing."
NBC has aired The Apprentice and Celebrity Apprentice since 2004, but the shows are owned by Mark Burnett Productions, which is majority owned by MGM. Burnett has declined to comment on Trump and a representative for MGM and its CEO Gary Barber did not respond to a request for comment. MGM attorneys may fear a contract lawsuit from Trump if they agree to release any audio or visual outtakes. The potential complication may be that Trump, as an executive producer on The Apprentice, could have the right to approve any video or audio that is released publicly.
But considering an NBC or Access Hollywood insider likely leaked the Trump-Bush conversation to the Post after becoming frustrated with NBC's lack of movement on the story, perhaps an Apprentice insider will take matters into his or her own hands.
Eriq Gardner contributed to this report.